Dirie and Omar were both convicted of weapons possession offences. The sole issue at trial was identity. An apartment building equipped with a surveillance system captured the crime in progress. The trial judge found, beyond a reasonable doubt, that the two men in the footage were Dirie and Omar. She compared the men in court to the security footage, and gave some weight to the evidence of a police officer who had encountered Dirie on many occasions and who also recognized him in the footage. His posture and the way he spoke out of the side of his mouth were notable features. The trial judge also concluded the objects brandished by Dirie and Omar in the footage were loaded, restricted weapons.

Dirie and Omar appealed their convictions for a number of reasons: R v Dirie, 2016 ONCA 502.

In relation to the footage, both Dirie and Omar argued that the quality was too limited for identification purposes, and that it was an unreasonable finding of fact that the objects held by the individuals in the video were determined by the trial judge to be loaded restricted firearms. Dirie argued that the distinct features which the officer testified about should not have been considered by the trial judge in identifying him. Omar argued that the trial judge ignored the fact that no clothes matching the clothes in the footage were discovered after a search warrant was executed: @ paras 4, 5.

The Court of Appeal, in a brief decision, rejected all of Dirie and Omar’s arguments. The Court found it was clear from the trial judge’s reasons that she was “alive to the risks inherent in identification evidence”, and that she properly instructed herself in accordance with the principles articulated in R v Nikolovski, [1996] 3 SCR 1197. The trial judge determined the video was of sufficient clarity and quality for comparison purposes, she reviewed the footage multiple times, and, in comparing the images to Dirie and Omar, she was entitled to rely on the relevant police evidence at trial: @ para 7.

The trial judge also recognized the significance of the footage to the Crown’s case, and did so by expressly averting to the fact that the search executed did not assist the Crown: @ para 8.

Regarding the trial judge’s finding that the objects in possession of Dirie and Omar were loaded and restricted weapons, the Court of Appeal concluded there was “ample evidence” to support the trial judge’s finding, including “the aggressive brandishing of the objects and a third party’s reaction to seeing the objects, which was captured on video”: @ para 10.

Comment

This is another recent case from the Court of Appeal (see also R v Benson, 2015 ONCA 827) which highlights the increasing importance of surveillance footage as effective (and, as in this case, sometimes critical) evidence for the Crown to lead in cases where identity may be difficult to prove. The utility of such footage is obvious: not only can it sometimes assist the trier of fact in reaching a possible determination as to identity, but it may also assist in the possible identification of other crucial details, including the possession of weapons.